Present

Mr. Justice Sheikh Abdul Awal

Criminal Appeal No. 103 of 2016    Md. Hanif.      

    .....Convict-appellant. -Versus-

                       The State.                         .....Respondent.

    No one appears.

                                                  .....For the convict-appellant.

Ms. Shahida Khatoon, D.A.G with Ms. Sabina Perven, A.A.G with Ms. Kohenoor Akter, A.A.G.

                     .... For the respondent.

                                                    Judgment on 16.07.2024.        Sheikh Abdul Awal, J:

This  criminal  appeal  at  the  instance  of  convict appellant,  Md.  Hanif  is  directed  against  the  impugned judgment  and  order  of  conviction  and  sentence  dated 23.04.2015 passed by the learned Additional Metropolitan Sessions Judge, 3rd Court, Dhaka in Metropolitan Sessions case No. 3322 of 2013 arising out of G.R. No. 115 of 2013 corresponding to Khilgaon Police Station Case No. 23 dated 14.03.2013  convicting  the  accused-appellant  and  another under table 2(Ka) of section 19(1) of the Madok Drobbya Niyantron  Ain,  1990  and  sentencing  them  thereunder  to suffer rigorous imprisonment for a period of 03(three) years and to pay a fine of Tk. 3,000/= (three thousand) in default

to suffer rigorous imprisonment for 03(three) months more each.

The  prosecution  case,  in  short,  is  that  one,  Md. Aksaduzzaman, S.I. Khilgaon Police Station, D.M.P, Dhaka as informant on 14.03.2013 at 01.25 hours lodged an Ejahar with Khilgaon Police Station against the accused appellant and another stating, inter-alia, that on 13.03.2013 at about 18.30  hours  while the  informant  along  with  other  police forces were on special duty got a secret information that two persons are selling Pethidine injection at 111/1-A, Meradia Naya Para, Chan Miah Goli in front of Halima Monzil under Khilgaon Police Station,  Dhaka  and thereafter, at  18.40 hours the informant with other police personnel rushed to the place of occurrence and thereafter, sensing the presence of police 2 persons tried to run away but the informant party apprehended them on chase and on search, informant party recovered 8 pieces of Pethidine injections from the right side pant pocket of the accused appellant, Hanif and 6 pieces of Pethidine injection from under the Lungi ( ) of accused, Md. Babul Miah. Thereafter, police seized those pethidine injections by preparing seizure list in presence of witnesses.  

Upon the aforesaid First Information Report, Khilgaon Police Station Case No. 23 dated 14.03.2013 under table 2(Ka) of section 19(1) of the Madok Drobbya Niyantron Ain,  1990  was  started  against  the  accused  appellant  and another.

 Police  after  completion  of  usual  investigation submitted charge sheet against the accused appellant  and another, vide charge sheet No. 70 dated 31.03.2013 under table  2(Ka)  of  section  19(1)  of  the  Madok  Drobbya Niyantron Ain, 1990.

Ultimately, the accused appellant and another were put on trial before the learned Additional Metropolitan Sessions Judge,  3rd  Court,  Dhaka  to  answer  a  charge  under  table 2(Ka) of section 19(1) of the Madok Drobbya Niyantron Ain,  1990  to  which  the  accused  appellant  and  another pleaded not guilty and claimed to be tried stating that they have been falsely implicated in the case.

At the trial, the prosecution side examined in all 06 (six) witnesses to prove its case, while the defence examined none.

On  conclusion  of  trial,  the  learned  Additional Metropolitan  Sessions  Judge,  3rd  Court,  Dhaka  by  the

impugned judgment and order dated 23.04.2015 found the accused appellant and another guilty of the offence under table  2(Ka)  of  section  19(1)  of  the  Madok  Drobbya Niyantron Ain, 1990  and sentenced them  thereunder to suffer rigorous imprisonment for a period of 03(three) years and to pay a fine of Tk. 3,000/= (three thousand) each in default to suffer rigorous imprisonment for 03(three) months more each.

.

Aggrieved by the aforesaid impugned judgment and order  of  conviction  and  sentence  dated  23.04.2015,  the accused-appellant preferred this criminal appeal.  

No one appears for the convict appellant despite of fact that this matter has been appearing in the list for hearing with the name of the learned Advocate for a number of days.

In view of the fact that this petty old criminal Appeal arising out of 3(three) years sentence has been pending for hearing   before  this  Court  for  more  than  8  years,  I  am inclined to dispose of the same on merit in accordance with law.

On scrutiny of the record, it appears that the accused appellant and another were put on trial to answer a charge under table 2(Ka) of section 19(1) of the Madok Drobbya Niyantron  Ain,  1990  for  the  offence  of  carrying  and possessing  8+6=14  pieces  of  Pethidine  Injunction.  The prosecution to prove its case examined in all 06(six) witness out of whom PW-1, Md. Mojibur Rahman, A.S.I. Matijhil Police Station, D.M.P. Dhaka stated in his deposition that on 13.3.2013 at 6.40 PM on the basis of a secret information he under the leadership of S.I. Aksaduzzaman rushed to 111/1- A Meradia, Naya Para Chan Miah Gol  in front of Halima Monzil and arrested 2 accused persons namely, Hanif and Babul Miah on chase and thereafter, on search their body recovered  8  pieces  of pethidine from  the  right  side  pant pocket of the  accused Hanif (appellant) and 6 pieces of

Pethidine from under the Lungi ( ) of accused Md. Babul Miah and thereafter, S.I. Aksaduzzaman prepared seizure list in  presence  of  witnesses.  This  witness  also  stated  that accused  persons  are  not  present  in  Court.  PW-2,  S.I. Aksaduzzaman, informant of the case. This witness stated in his  deposition  that  on  13.3.2013  at  6.40   PM  while  the informant along with other police forces were on special duty got a secret information that two persons are selling Pethidine  injection  at  111/1-A  Meradia,  Naya  Para  Chan Miah Goli in front of Halima Monzil under Khilgaon Police Station, Dhaka and thereafter, at 18.40 hours police team rushed  to  the  place  of  occurrence  and  then  sensing  the presence  of  police  2  persons  tried  to  flee  away  but  the informant  party  apprehended  the  convict  appellant  and another  on  chase  and  on  search,   recovered  8  pieces  of pethidine injection from the right side pant pocket of the accused appellant, Hanif and 6 pieces of Pethidine injections from under the Lungi ( ) of accused, Md. Babul Miah and thereafter,  police  prepared  seizure  list  in  presence  of witnesses. This witness also stated that accused persons are not present in Court. This witness proved the seizure list as exhibit-1  and  his  signature  thereon  as  exhibit-1/1.  This witness  proved  the  FIR  as  exhibit-2  and  his  signature thereon exhibit-2/1. This witness identified the seized goods as material exhibit No. I series. This witness also stated in his deposition that accused persons are not present in Court. PW-3, Shushanka Paul, Sub Inspector, Palton Model Police

Station,  DMP,  Dhaka investigated  the  case.  This  witness stated in his deposition that S.I. Aksaruzzaman arrested the accused  persons  and  seized  pethidine  injunctions.  This witness stated in his deposition that he investigated the case, during investigation he  visited the place of occurrence , prepared sketch map and proved the same as exhibit-4 and his signature thereon 4/1. This witness stated in his evidence that  he  obtained  chemical  examination  report  of  seized goods and proved the same as exhibit-6. This witness also stated in his evidence that during investigation he examined the witnesses under section 161 of the Code of the Criminal Procedure  and  after  completion  of   investigation  having found prima-facie case against the accused appellant  and another and submitted charge sheet against them and another accused under table 2(Ka) of section 19(1) of the Madok Drobbya Niyantron Ain, 1990. PW-4, Nur Alam, seizure list witness, who sated in his deposition that- “

” PW-5, Md. Rafiqul Islam, another seizure list witness, who stated in his deposition that “

” PW-6, A.S.I, Md. Mojibur Rahman, member of the raiding party as well as eye witness of the occurrence , who gave evidence in support of the prosecution case as like PW-1 and PW-2.

On  an  analyses  of  the  above  quoted  evidence,  it appears that police witnesses namely PW-1, PW-2, PW-3 and  PW-6  in  their  respective  testimony  testified  that  the accused appellant and another were arrested on 13.3.2013 and   on search,  police  recovered  total  8+6=14  pieces  of pethidine Injection. It further appears that PW-4 and PW-5, seizure  list  witnesses  stated  nothing  in  their  respective evidence against the accused appellant as to carrying and possessing contraband goods. It further appears that in this case  occurrence  took  place  on  13.3.2013  at  18.30  hours although police lodged the FIR with Khilgaon police station on 14.3.2013 at 1.25 hours i.e. more than 7 hours without any reasonable explanation and there is nothing on record to show  that  how  much  quantity  of   “Buprenorphine Hydrochloride” found in the seized articles.

In  the  case  of  Md.  Ashraful  Islam  Vs.  The  State  reported in III ADC 343, it has been held as follows:

“The submissions merit consideration, Leave is, therefore, granted to consider the ground that the trial Court and the High Court Division failed to consider that unless the quantity of hereon  in question is ascertained by a report by chemical examiner the conviction under section 19(1) of Table 1(kha) of Narcotics Control Act, 1990 is not sustainable in law and as such it is liable to be set aside.”

It  is  found  in  this  case  on  receipt  of  information through  secret  source  PW  I  and  some  other  personnel department raided and searched the accused and recovered pethidine injunctions. Thus, the search was prearranged and preplanned one. But it was not made in presence of two respectable persons of the locality, even not in presence of the  neighbouring  shop-keepers.  Seizure  list  witnesses namely, PW 4 and PW-5 did not support search, recovery and seizure in their presence. Thus, it is evident that search was not made in accordance with section 103 of the Code of Criminal  Procedure  though  there  was  ample  scope  of making search complying with the mandatory provision of that section. It is held in the cases of Moklesur Rahman and another vs State, 1994 BLD 126, Habibur Rahman vs State, 47 DLR 323 1995 BLD 129, Julfikar Ali @ Kazal vs State, 1995 BLD 570 = 47 DLR 603, Jewel vs State, 5 MLR 1705 BLC 248 and Harun Bepari (Md) vs State 5 MLR 3955 BLC 501 that search and seizure of incriminating articles without strictly complying with requirement of section 103 of the Code  of  Criminal  Procedure  cannot  be  held  legal.  This principle of law is applicable in the instant case.

Moreover, in this case no local and private witnesses supported alleged recovery and seizure. The conviction is based on the evidence of 4 police witnesses, who were the members  of  the  seizing  party  and  one  of  them  is  the informant. In the case of Habibur Rahman vs State, 47 DLR 323  =1995  BLD  129,  it  is  held  that  police  personnel conducting the search and seizure are interested witnesses and their evidence requires independent corroboration. Same view was taken in the case of Gaziur Rahman vs State 1991 BLD 11. In the case of Mati Miah vs State, 44 DLR 554, it is held that conviction cannot be based on the uncorroborated testimony  of  the  informant,  who  is  a  police  officer  and virtually interested in the result of the case. In the case of Aslam Jahangir vs State, 2000 BLD 426 = 5 BLC 514, it is held that the evidence of the private witnesses regarding denial of their presence at the scene of recovery in no way can be cured by the police personnel witnesses, who are interested in the result of the case.

Taking into consideration all the aspects of the case, particularly the fact that seizure list witnesses namely PW-4 and PW-5 stated nothing against the accused appellant and the evidence of police witnesses were not corroborated from any private individual and the quantity of “Buprenorphine Hydrochloride”  was  not  ascertained  by  a  report  in accordance with law vis-a-vis the principles laid down in cited cases, I am constrained to hold that the prosecution has failed to prove the charge against accused Md. Hanif beyond any reasonable doubts. The learned Additional Metropolitan Sessions Judge failed to evaluate the evidence from a proper angle thereby reaching a wrong decision, which occasioned a failure of justice. Consequently the appeal succeeds.

In the result, the appeal is allowed and the impugned judgment  and  order  of  conviction  and  sentence  dated 23.04.2015 passed by the learned Additional Metropolitan

Sessions Judge, 3rd Court, Dhaka in Metropolitan Sessions case No. 3322 of 2013 arising out of G.R. No. 115 of 2013 corresponding to Khilgaon Police Station Case No. 23 dated 14.03.2013 against the accused-appellant is set-aside and he is acquitted of the charge levelled against him.

Accused appellant, Md. Hanif is discharged from his bail bonds.

Send down the lower Court records at once.